Introduction
| Author | Nasreen Pearce |
| Pages | 1-12 |
Chapter 1
Introduction
1.1 BACKGROUND
It has long been a characteristic of English law that, provided a person has
testamentary capacity and complies with the formalities relating to the making of
a valid will, they may, in their will, make provision for the disposal of their entire
estate on death as they choose, and their estate will devolve in accordance with
the terms of the will. If a person dies without having made a will, or if they leave
a will which in law is not valid, the law relating to intestacy operates and the estate
will devolve in accordance with that law. If the provisions made in the wi ll do not
dispose of the entirety of the estate, then the property will devolve in part in
accordance with the terms of the will, and the remainder will pass under the law
of intestacy. In many legal systems, and especially those based on Roman law,
immediate family members and other defined persons enjoy fixed rights of
inheritance to the estate of the deceased irrespective of the deceased’s wishes and
thus complete freedom of testation is unknown.
Statutes and, consequently, case law have, however, made inroads into this
freedom in order to meet progressive thinking, social and economic needs and
pressures, and scientific changes that have occurred since the First and Second
World Wars. The ratification b y the United Kingdom in 1951 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950
(Human Rights Convention), which came into force in 1953, and its subsequent
incorporation into UK law in the Human Rights Act 1998 have also impacted on
domestic legislation and its interpretation. In order to be Convention-compliant
and to deal with the impact of these changes, courts have interpreted statutory
provisions and confronted the particular circumstances of the case that they are
faced with in order to fill the lacuna in legislation and to meet with the justice of
the case. For example, in relation to cohabitants, constructive trust law has been
relied on to establish beneficial interests; and with regard to those on state
benefits, courts have arrived at a decision which meets some of the needs of the
claimant while enabling the person to continue receiving some, if not all, of the
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